Judgment :- Petitioner is conducting a foreign liquor shop building No. 45/XXV of Trichur Municipality. Petitioner had applied for licence to conduct the liquor shop in this building. His application was rejected by the first respondent, the Assistant Excise Commissioner, Trichur on the ground that it is located within 400 metres from the Sree Vadakkumnnatha Temple, Trichur. Petitioner approached this Court by filing O.P.5011 of 1993 challenged the validity of the distance rule contemplated under R.6(2)(a) of the Abkari Shops (Disposal in auction) Rules. An interim order was passed in favour of the petitioner and he continued his business in that building. While so, the first respondent filed W.A.No. 546/93 alleging that petitioner's shop is functioning in violation of R.6(2)(a) of the Rules. The Division Bench by judgment dated 28-5-93 held that the southern gate of Sree Vadakkumnnatha temple normally remain closed and it is opened only on two days in the year in connection with Sivarathri festival. So for taking distance from gate to gate the southern gate should not be taken in to consideration. Petitioner was allowed to carry on his business in that same shop. 2. Then the first respondent sought a clarification from the Division Bench stating that the petitioner's shop fell within the distance of 400 metres from Manikandanal Sree Subramania temple. The Division Bench clarified that the judgment dated 15-10-93 dealt with only the question whether the petitioner's shop was within the prohibited distance of Sree Vadakkumnnatha temple. Petitioner herein raised objection that Manikandanal Sree Subramania temple is not a temple as defined under R.(2ka) of the Kerala Abkari Shops (Disposal in auction) Rules. The Division Bench permitted the first respondent to take fresh decision and the petitioner herein was allowed to raise all objections. 3. The first respondent thereafter considered the question and held that Manikandanal Sree Subramania temple is a temple which satisfies all the ingredients of the definition of temple given in R.2(ka) of the Rules. Petitioner's shop is within 400 metres of this alleged temple and therefore the licence of the petitioner to conduct foreign liquor shop in this building was cancelled vide Ext. Pl? order. Ext. P1 V order passed by the first respondent is challenged in this Original Petition. 4. Several contentions have been urged by the petitioner challenging the validity of Ext. P1?. According to the petitioner, Manikandanal Sree Subramania temple is not a temple at all. Pl? order. Ext. P1 V order passed by the first respondent is challenged in this Original Petition. 4. Several contentions have been urged by the petitioner challenging the validity of Ext. P1?. According to the petitioner, Manikandanal Sree Subramania temple is not a temple at all. It is only a structure erected by the side of a public road and it is specifically excluded from the ambit of the definition of temple by virtue of explanation given to R.2(ka) of the Rules. Petitioner contends that formerly there was a large banian tree and it fell in the year 1990 and therefore the platform of the banian tree was used for erecting the temporary shed in the form of a worship place and the deity was installed by some interested persons. It is alleged that the alleged temple is not recognised by the Cochin Devaswom Board under whose management the temples in the erstwhile Cochin State are functioning. 5. A counter-Affidavit has been filed by the first respondent. In the counter-affidavit it is stated that the first respondent received series of complaints from the residents of the locality alleging that the foreign liquor shop is within 400 metres from the Sree Vadakkumnnatha temple and Manikandanal Sree Subramania temple. Some persons filed petition before the court alleging that the first respondent had not been taking any steps. First respondent then measured the distance to the petitioner's shop from the Manikandanal Sree Subramania temple and it was found that the shop is at a distance of 251 metres and show-cause notice was issued to the petitioner and the petitioner was given opportunity to submit objection. The Cochin Devaswom Board Secretary reported that the Manikandanal Sree Subramania temple is under the management of the Cochin Devaswom Board. The first respondent further contends that there is regular pooja in this temple and lot of worshippers come to offer prayers in the temple. As it was found that Manikandanal Sree Subramania temple is a temple in all respects the Vicence of the petitioner was cancelled. 6.1 heard the petitioner's counsel and the Government Pleader. The short question that arises for consideration is whether the Manikandanal Sree Subramania temple is a temple as defined under R.2(ka) of the Abkari Shops (Disposal in auction) Rules, 1974. 6.1 heard the petitioner's counsel and the Government Pleader. The short question that arises for consideration is whether the Manikandanal Sree Subramania temple is a temple as defined under R.2(ka) of the Abkari Shops (Disposal in auction) Rules, 1974. Temple has been defined as follows: "2(ka) "Temple" means a place of public religious worship by Hindus where a deity is installed under a building and includes a mutt also: Provided that any structure on the road side, pavement or in a compound of a private building with or without deity shall not be considered as a "Temple". 7. The main thrust of the argument of the petitioner's counsel is that Manikandanal Sree Subramania temple could be considered as a temple on the basis of the meaning given to the word "temple" in common parlance and it is argued that the definition of the temple given in the Abkari Shops (Disposal in auction) Rules gives a different meaning to temple and that any structure on the road side, pavement or a private property cannot be said to be a temple. It is also contended that in order to make a temple the deity must have been installed under a building and any shed or temporary structure will not come under its definition. Going by the definition given under Rule 2(ka) it is clear that in order to make a temple it must be a place of public religious worship where the deity is installed under a building. Any other place of worship which is only a structure may not come under the definition of temple. The presence or absence of deity in the structure is immaterial for the purpose. The important aspect is that whether there is any building as such and the deity is installed under that building. Admittedly, there is a structure in the form of a shed. The photograph of this structure was shown to me by the petitioner's counsel as well as the Government Pleader. The shed is erected at the place where the huge banian tree was standing. The platform of the tree is about 4 ft. height from the ground level. There are no steps leading to the place where the deity is installed. There is no compound wall surrounding this place. It is difficult to hold that the place where the deity is installed is a building. The platform of the tree is about 4 ft. height from the ground level. There are no steps leading to the place where the deity is installed. There is no compound wall surrounding this place. It is difficult to hold that the place where the deity is installed is a building. It could only be said to be a structure and, therefore, in my view, Manikandanal Sree Subramania temple cannot be said to be a temple as defined under the Abkari Shops (Disposal in auction) Rules. I hasten to add that it may be a temple for other purposes and several persons might have been worshipping this place and treating it as a temple in its full sense. But, going by the definition in the Rules, the deity could be said to have been installed in a structure by the road side and such a temple is specifically excluded from the purview of the definition given under the Rules. 8. It may be noticed that till 1990 there was a big banian tree at the place where the present temple is in existnece. The banian tree fell and a structure was creeled at that place. Petitioner has produced series of documents to show that the place where the banian tree stood was used as a place for gathering and even political processions started from this point. Affidavits and documents have been produced to prove this fact. Exts. P8 and P16 are some of the affidavits in this regard. Ext. P16 is a booklet published by one Sankarankutty. All these documents indicate the above fact. 9. Ext. P11 is a list of temples under the management of Cochin Devaswom Board. Manikandanal Sree Subramania temple does not find a place in Ext. P11. However, subsequently, this temple also was brought under the management of the Cochin Devaswom Board. Therefore, I do not attach much significance to Ext. P11. 10. It may also be noted that the very same Assistant Excise Commissioner did not have any case that the petitioner's shop was within the prohibited distance of this temple. The writ appeal filed by him was directed only against the contention that the temple was within the prohibited range of Sree Vadakkumnnatha temple. P11. 10. It may also be noted that the very same Assistant Excise Commissioner did not have any case that the petitioner's shop was within the prohibited distance of this temple. The writ appeal filed by him was directed only against the contention that the temple was within the prohibited range of Sree Vadakkumnnatha temple. It is clear that at the initial stage even the Excise authorities did not take into consideration the existence of this temple for the purpose of Abkari Shops (Disposal in auction) Rules. 11. A question of this nature came before this Court in Bhargavan v. Thankapan (1989 (1) KLT 719). Elaborate argument was advanced by the counsel on either side. The question that came up for consideration was whether Sree Narayana Guru Mandiram was a temple as defined in the Abkari Shops (Disposal in auction) Rules. This Court held that Sreenarayana Guru Mandirams are not temples. 12. Under the above circumstances, the view taken by the first respondent that Manikandanal Sree Subramania temple is a temple as defined under the Abkari Shops (Disposal in auction) Rules is not correct and the impugned order passed on the basis of that assumption is illegal and not sustainable in law. IquashExt.P17and direct that the first respondent shall permit the petitioner to carry on his business in the disputed building. Original Petition is allowed.